Standards Cases

Notice of Sanction

On 1 November 2007 , Ofcom published its decision to impose a statutory sanction on ARY Digital UK Ltd. The sanction was for breaches of Rule 2.1 (generally accepted standards must be applied to the contents of television services so as to provide adequate protection for the public from harmful material); Rule 10.3 (products and services must not be promoted in programmes); and Rule 10.4 (no undue prominence to be given to a product or service) of the Code.

Ofcom has found that these rules were breached due to the following conduct.

First, allowing an alternative health practitioner, Dr Surjeet Kaur, to make unfounded and unchallenged claims on The Weekend Show regarding:

a) the ability of products she sold to cure cancer, and of the cancer-curing benefits of consuming garlic and of other alternative health practices; and

b) the efficacy of her company’s products in curing other serious medical conditions such as leprosy, sciatica, psoriasis and sterility. This created a material risk that potentially vulnerable viewers, and in particular any suffering from life threatening illnesses such as cancer, would follow this advice and might do so without seeking proper medical help. This risked serious harm to viewers.

Second, the disproportionate and extensive promotion of Dr Kaur’s practice and medicines resulted in undue prominence being given to her products and her alternative health practice.

For the reasons set out in the adjudication, Ofcom imposed a financial penalty of £15,000 on ARY Digital UK Ltd. and directed it to broadcast a statement of its findings in a form determined by Ofcom on one specified occasion.

In Breach

Fizz Music
Fizz TV, 17 May 2007, 20:25

Introduction

Fizz TV is a music video channel. A viewer complained that a video entitled All the Way contained flashing images.

Certain types of flashing images present a danger of triggering seizures in viewers who are susceptible to photosensitive epilepsy (PSE). The Code therefore contains a rule aimed at minimising the risk to viewers who have PSE. Rule 2.13 states that “Broadcasters must take precautions to maintain a low level of risk to viewers who have PSE. Where it is not reasonably practicable to follow the Ofcom guidance (see the Ofcom website), and where broadcasters can demonstrate that the broadcasting of flashing lights and/or patterns is editorially justified, viewers should be given an adequate verbal and also, if appropriate, text warning at the start of the programme or programme item”.

We asked Fizz TV to comment on compliance with Rule 2.13.

Response

Fizz TV pointed out that the video had been preceded by a text warning, but acknowledged that it was unfortunate that it was unable to fully test this content before broadcast. The broadcaster wished to apologise if this video caused any viewer medical distress.

The broadcaster explained that while Fizz TV may be part of a very small broadcasting company, its compliance team receive regular training and updating in the requirements of the various areas of Code. The broadcaster also assured us that it is improving compliance in this area by, for example, requesting suppliers of videos that may cause PSE problems to provide the results of tests already carried out, or by starting to commission their own tests through external suppliers.

Decision

Ofcom has drawn up guidelines[(-1-)], following consultation with leading medical opinion in this area, with the aim of reducing the risk of exposure to potentially harmful stimuli in television images which can trigger PSE. The guidelines set various criteria to judge whether sequences of flashing images are potentially harmful. Content which contains rapid scene cuts or/and where there is a change in screen brightness between cuts, should be considered especially carefully.

Ofcom's tested the video and found that seven distinct sequences in the video were non-compliant with the technical criteria in the guidance, and that each of these sequences contained between four and ten flashes. Most of the non-compliant material took the form of close-ups of an actor, rapidly intercut with black frames. We are therefore concerned that the video as a whole presented a risk of triggering PSE seizures in susceptible viewers.

Although a text warning was transmitted at the beginning of the video, Ofcom does not consider that this mitigated the seriousness of the flashing content in this case. A further concern is that, unlike general entertainment channels, music video channels are likely to repeat material on a frequent basis, increasing the risk of exposure.

We welcome the broadcaster’s assurance that further measures would be put in place to identify material that could be problematic in this area. We nevertheless would remind broadcasters that, irrespective of the source, it is their responsibility to ensure that material it transmits complies with the Code. This responsibility is particularly important where there is potential for harm to viewers.

Cash Call
The Hits, 17 April 2007, 00:00

Introduction

In this Call TV quiz service winners picked one of a number of boxes, each of which contained a cash prize, and then participated in a jackpot game for an additional prize of up to £3,000.

In the first competition, viewers were invited to “spot the difference” between two photographs of the actress Jennifer Aniston. Throughout the competition, a permanent on-screen message read: “£450 GUARANTEED + £3000 JACKPOT.” Intermittently, a flashing message, which stated, “One box guaranteed!”, was also screened. At the beginning of the competition, the presenter said: “Not only do we play the jackpot game today but we also have some boxes lined up for you as well. The value of the boxes: £450. You choose a box, and a number, and it could be yours.” A little later, he added: “There’s actually £450 worth of money in there. They’re all in different boxes – loads of different amounts of money. I’m dying to have a look.”

The winner picked a box, which contained a prize of £10. He then proceeded to participate in the jackpot game. His prize total was £20.

A viewer believed the programme had been “falsely advertising the guaranteed money you can win.”

Rule 2.11 of the Code requires that, “…prizes should be described accurately…”.

We therefore asked The Hits for its comments on the matter.

Response

The Hits acknowledged that the on screen graphics “could potentially be seen as contravening Rule 2.11 of the Code”, adding that the programme’s production company had used an incorrect graphic and confirmed that the correct on-screen message should have read, “£450 IN BOXES + JACKPOT £3000.”

The broadcaster said that it had recently engaged an independent verification company to conduct an audit of the production company’s processes and procedures. It said that the company had been reported to operate at a “high standard”, with a senior management that “demonstrated their commitment to fair play and compliance.” However, The Hits added that it had decided to terminate its contract with the production company on 19 April 2007 , as it “felt that the vigour with which they were seeking to improve the financial performance of the programming was jeopardising the rigor with which they were adhering to the relevant codes of practice and regulations.”

Decision

The accurate description of a prize is essential, as it is a principal influence on a viewer’s decision whether to enter a competition.

Ofcom acknowledges the broadcaster’s approach to the maintenance of Code compliance and that the mistake was made by the production company in this instance.

It appears that £450 was the total sum available as winners’ initial prizes (i.e. excluding the possible jackpot) in the programme, although this was not clear to viewers on air or confirmed in the broadcaster’s response.

The on-screen message clearly implied that the winner was guaranteed a prize of £450. The presenter’s description of the guaranteed prize available to viewers was, at best, ambiguous and did not clarify adequately that the prize for any single competition would be less than £450.

The description of the prize was not accurate, in breach of Rule 2.11 of the Code.

Breach of Rule 2.11

James and Ali’s Breakfast BlanksInvicta FM, 10 October 2006

Introduction

In a competition to win a cash prize of £6,047, listeners were invited to call in and fill in the ‘blanks’ of a phrase. In this case the phrase was, “When I get home there’s nothing I like more then getting out my [blanks] and [blanking]”. The phrase concerned playing a record and the required answers were therefore “12 inches” and “spinning.”

A listener claimed that there was a lack of consistency in the running of the competition, with its format appearing to change, depending on the presenter hosting it. He also found the competition rules unclear.

When trying to enter the competition, the complainant said he had got through to the station on a number of occasions and had been told by one particular presenter that he was “not line 103.” However, on the final occasion he got through he was asked for his name, location and phone number. He also gave his answer. As his details had been taken and he was sure he had given the correct answer, he believed he had won the competition and would be called back by the station. However, a while later, the complainant’s wife heard another listener give the same (correct) answer on-air.

The complainant said that the competition announcements and website had not made clear any relevance of “line 103” and that he could not understand why his details were taken on the final occasion if he was not to be given a chance to give his answer on air.

Rule 2.11 of the Code requires that: “Competitions should be conducted fairly, prizes should be described accurately and rules should be clear and appropriately made known.” Ofcom asked GCap Media plc, which owns Invicta FM, for its comments.

Response

GCap said that the original process for selecting an entrant was to put the 103 rd caller through to the studio (Invicta broadcasts on 103MHz) and that this was clear to entrants. However, on this occasion, the producer/presenter realised that there were unlikely to be 103 calls during the show and that the process would therefore have to be changed. GCap said this decision was made after the complainant had left his details. It added:

“The new selection process for a winner was based on a numbered caller within the remaining period of the show (e.g. caller 5). At this stage and due to the unavailability of adequate records, it appears that this was not necessarily followed up with sufficient notification to listeners about the change in process.”

GCap said that, although the complainant may have given his answer, he had not been asked for it. GCap added that it did not have an audit trail to investigate why the complainant’s details were taken on one occasion but not on others, but suggested that the presenter may also have taken down the details of other contestants.

Decision

The broadcaster stated that it had made clear that the original rule was to take the 103 rd caller to air. However the rules were changed during the course of the competition and this was not made clear to listeners. This was in breach of the Code.

It is not unusual for callers to provide their answers unprompted, when attempting to enter competitions, and, on this occasion, Ofcom has no evidence to determine whether or not the caller was asked for the answer. However, we are not surprised that the complainant, who had given his answer and his details, believed he had won the competition.

GCap’s lack of clarity and inconsistency in its process of selecting entrants to go to air was therefore unfair to the complainant and potentially unfair to other callers. The competition was not conducted fairly and rules were not appropriately made known, in breach of Rule 2.11 of the Code.

Real Summer Quiz was a daily listener competition (excluding Sundays). On 15 June 2007 one of the presenters asked the question: “In which range does People’s Ford launch a new car next month? Is it … the Fiesta – great car, the Focus – even better car, or the Mondeo – a wonderful car to drive.” After the correct answer (the Mondeo) had been provided by a caller, he then said: “Yes, it’s at all good Ford People’s [sic] car showrooms at the end of this month – in Falkirk , Grangemouth and Edinburgh .”

Real Summer Quiz was sponsored by Sainsbury’s. The prize each day was £100 of Sainsbury’s goods. The highest scoring person over the week also won £1,000 in vouchers to spend at Sainsbury’s. On 21 June 2007 , after the prizes had been announced, one of the presenters joked about how he did not know the quality of the goods, as he had not received a personal hamper. He concluded by saying that he was, “sure most of the stuff in the store [was] absolutely wonderful.” A little later, he then added: “And do you know what I know as well about Sainsbury’s? I was passing by, driving down the road the other day. You get wee Sainsbury’s – you get wee Sainsbury’s in garages. There’s one at Charing Cross … yes, wee ones dotted all over the place. So you don’t have to go to a big, big one; there’s a wee one. Keep your eyes out.”

Real Football Phone In is a daily programme (excluding Sundays) broadcast throughout the football season. On 1 August 2007 one of the presenters trailed a competition (to be run the following week) called ‘Real Football Legends’, which was sponsored by Coca Cola Zero. The other presenter interjected with comments, which included, “Wow, great drink”, and “I love Coca Cola Zero, by the way – great drink!”

A listener believed that the broadcast on the 15 June 2007 gave undue prominence to People’s Ford and that the broadcast on 21 June 2007, “relating to the convenience and location of Sainsbury’s stores around Glasgow , breached the rules for sponsorship.” He was also concerned about the presenter’s personal endorsement of Coca Cola Zero on 1 August 2007.

Section 10 of the Code concerns, among other things, commercial references in programmes. Rules 10.3, 10.4 and 10.5, respectively, prohibit the following in programming:

the promotion of products and services;

undue prominence being given to products and services; and

product placement.

Section 9 of the Code concerns broadcast sponsorship. Rule 9.5 prohibits promotional references to a sponsor or its products and services in the sponsored programme and requires that non-promotional references are editorially justified and incidental[(-2-)].

We therefore sought Real Radio’s comments on the matters raised by the complainant, with regard to Rules 10.3, 10.4 and 10.5 of the Code concerning the broadcast on 15 June 2007 and with regard to Rules 9.5 and 10.5 concerning the broadcasts on 21 June and 1 August 2007.

Response

Real Radio said that the Real Summer Quiz replaced its regular Real Football Phone In between football seasons. It featured the phone-in presentation team, which was known for being satirical. It added that the Real Summer Quiz presenter in question was a former Scottish international goalkeeper who was not a trained journalist or full time professional broadcaster but had been a football pundit on the phone-in since its launch. Real Summer Quiz was therefore “not overly-produced, scripted or particularly slick”, but included presenter and audience banter, slight innuendo, obvious mistakes and tongue-in-cheek humour, in line with the expectations of regular listeners to the phone-in.

Real Radio added that no payment or other consideration had been received by the broadcaster or presenters in return for any of the comments made in the programmes.

Real Summer Quiz, 15 June 2007

The broadcaster said that the presenter had taken on the role of quizmaster as a ‘one-off’, with his colleagues helping the contestants . It added that the references to People’s Ford and its products as a quiz question had been written by the presenter, “on the basis of a … newspaper review of the new Ford Mondeo that morning” and were made, “without intent … to … contravene any aspect of the Broadcast Code.” Real Radio claimed that the presenter’s comments concerning People’s Ford were made in the presentational style with which he would normally be associated within the football phone-in. The broadcaster therefore believed that it would have been clear to regular listeners that the presenter’s comments were not meant as a serious endorsement or to be viewed as commercially credible, being delivered in the normal humorous style for which the phone-in had become known.

Nevertheless, Real Radio acknowledged that there was no editorial justification in the Real Summer Quiz for featuring the company name and its products. The presenter had been told this by the producer after the programme ended. The broadcaster added that the presenter had understood this requirement.

Real Summer Quiz, 21 June 2007

Real Radio said that the same presenter, “again without knowledge of or intent to breach any aspect of the Broadcast Code … chose to engage in what he felt was acceptable and believed in his experience, fairly common and light hearted banter on the virtues of the programme sponsor” (i.e. Sainsbury’s). The broadcaster added that the presenter believed “he was light heartedly engaging with contestants and audience alike in giving information on where they could exchange [the prize] vouchers” and was “clearly oblivious on this occasion to the sections of the Broadcast Code which indicate that neither he nor the station should … promote in any way the sponsor’s activities or locations.” The presenter had therefore “been severely reprimanded by the station management for allowing this to happen” and sincerely regretted his comments.

Real Radio apologised, said that it considered non-compliance with the Code to be extremely serious and added that its Programme Director had therefore instigated additional safeguards and training in order to ensure no recurrence. The broadcaster assured Ofcom that it would “ remain vigilant and diligent in all matters relating to compliance within the Code.”

Real Football Phone In, 1 August 2007

Real Radio said that, when the ‘Real Football Legends’ competition was trailed, the “additional remarks” made by one of the other presenters about the sponsor (i.e. Coca Cola Zero) was, “a personal utterance … never intended to encourage purchase or be seen by listeners … as a serious attempt at endorsing the product.” Nevertheless, the broadcaster was sorry if it appeared that this presenter had deliberately attempted personal endorsement, which it assured us was not the case. Real Radio added that it had again stressed to its presentational team the need for “vigilance, professionalism and adherence to the published rules.” In particular, it had reminded the Real Football Phone In team of the need to avoid inadvertent or unassuming references to a sponsor or its product or service.

The broadcaster assured us that it did not expect further recurrence and that any similar instance “may be subject to serious disciplinary action being taken against the presenter.”

Decision

The tone and style of broadcast content is a matter for the licensee, so long as the output complies with the Code. In the case of Real Summer Quiz, the broadcaster should have realised the potential pitfalls in relying on a radio presenter of limited experience in programming that fell outside his own area of expertise.

Real Summer Quiz, 15 June 2007

We agree that there was no editorial justification for the presenter to base a question on People’s Ford and its products. Irrespective of the presenter’s manner and style, Ofcom also believes his additional comment, in which he cited specific People’s Ford outlets, was promotional and unduly prominent. The programme therefore breached Rules 10.3 and 10.4 of the Code.

Real Summer Quiz, 21 June 2007

Rule 9.5 prohibits promotional references to a sponsor or its products and services in the sponsored programme and requires that non-promotional references are editorially justified and incidental. On 21 June 2007, the same presenter’s reference to the quality of Sainsbury’s (the sponsor’s) products was given in the context of light-hearted and passing comment related to the daily prize and appeared relatively incidental. However, his additional comment, which concerned a specific type and location of outlet, appeared to lack any editorial justification. The programme therefore breached Rule 9.5 of the Code.

Real Football Phone In, 1 August 2007

Ofcom did not believe the interjections of a different presenter appeared to be intentionally promotional. Nevertheless, the sponsor credit broadcast was “Real Football Legends … with Coca Cola Zero – the great Coke taste – zero sugar.” The presenter’s comments were a personal endorsement of Coca Cola Zero, the sponsor of the competition, and were not therefore editorially justified or incidental. The programme was in breach of Rule 9.5 of the Code.

Ofcom is disappointed that Real Radio’s efforts to avoid recurrence were not effective, after the comments broadcast in Real Summer Quiz. However, we welcome the broadcaster’s apologies and continued action and assurance concerning future compliance.

Real Radio has a generally good compliance record, especially considering its higher than average speech content for a local commercial radio station. Nevertheless, these Code breaches raise serious concerns and Ofcom will consider taking further regulatory action in the event of recurrence.

Breach of Rules 9.5, 10.3 and 10.4

Footnotes:

2.-Rule 9.5 was previously Rule 9.6 (at the time of the broadcast).

Scottish Cup Final
Sky Sports HDX, 26 May 2007, 15:00

Introduction

A viewer complained that the second half of the Scottish Cup Final transmitted on a Sky High Definition (HD) channel was interrupted by footage unrelated to the match. In addition, the viewer was concerned by comments by a reporter which he found offensive to Scottish viewers. Ofcom asked Sky for a recording of the material in question but the broadcaster was unable to provide it.

It is a condition of Sky’s licence for this channel that it makes and retains a recording of every programme for a period of 60 days from the date of transmission and provide Ofcom with a copy on request. Ofcom requested the recording within the 60 day period. Ofcom asked Sky to explain why it was unable to provide a recording.

Response

Sky informed Ofcom that it had broadcast the Scottish Cup Final in HD on a Sky Sports branded channel (Sky Sports HDX – which ceased broadcasting in May 2007) under the Sky Box Office licence. This was a simulcast of Sky Sports Xtra.

Sky confirmed that coverage of the match was accidentally interrupted by a short period of test footage from a different sporting venue – the JJB stadium in Wigan. When the signal was switched, viewers could hear a reporter attempting a Scottish accent in a light hearted way. Sky noticed the switch in signal at 16:20 and the HD signal was switched back at 16:27 . Sky would have been able to provide a recording of Sky Sports Xtra. It did not however record its HD output (including Sky Sports HDX) separately and was not therefore recording the material complained of.

As a result of this incident Sky made arrangements for the separate recording of its HD programmes. This means that if the same technical error occurs in the future, it would be able to provide a recording of the material. Sky apologised for any inadvertent offence caused by the out of context voice-over, stating that the comments heard by the viewer were not intended in any way to be disrespectful to Scottish viewers.

Decision

Ofcom welcomes the apology offered and Sky’s introduction of procedures to prevent the recurrence of similar incidents. However failure to supply a recording was a serious breach of Sky’s Box Office licence which requires the broadcaster to retain and produce recordings . This breach will be held on record.

Breach of Licence Condition 11

Win Win TV
iPlay, 8 May 2007, 21:30

Introduction

A viewer was concerned about the conduct of an interactive hangman-style game in which viewers were invited to text in letters of the alphabet. Ofcom asked Transact TV Limited, which owns iPlay, to provide a recording of the programme.

Response

Transact TV said that the recording no longer existed. The organisation that could have supplied it retains recordings for a period of 90 days, however that period had passed by the time Transact TV requested it.

Decision

It is a condition of a television broadcaster’s licence that recordings of its output are retained for 60 days after transmission and that Ofcom is provided with any material on request. The f ailure by Transact TV Limited to supply the recording in this instance is a serious and significant breach of Condition 11 (Retention and production of recordings) of its licence to broadcast, especially since the broadcaster had been put on notice, but simply failed to request the recording from its supplier. This breach will be held on record.

Breach of Licence Condition 11

Resolved

Supernatural trailer
ITV2, 2-31 May 2007, various times

Introduction

A trailer for the science fiction series Supernatural was shown frequently between 2 and 31 May before the 21:00 watershed. The trailer included some brief shots of people turning into werewolves and a threatening scene with a gun.

Eight viewers complained that this trailer was too scary to be shown during the day when young children watch television. Some were particularly concerned that it was shown during the film The Flintstones which appeals to a family audience including younger children.

Ofcom asked ITV for a response with reference to Rule 1.3 (appropriate scheduling) of the Code.

Response

The broadcaster explained that the trailer followed the theme, style and conventions of other promotions for this popular science fiction/fantasy series. The usual slogan was employed which refers to Supernatural being both “scary” and “sexy”. The “scary” aspect included a hand with fingernails growing into talons, several faces of werewolf creatures baring their teeth and the hero confronting these creatures with a gun. “Sexy” was represented by a kiss and a brief shot of two women clad in non-revealing lingerie.

The series is shown post-watershed and the shots selected for the trailer were chosen to indicate the subject matter but remain suitable for a pre-watershed audience. ITV believed the shots were sufficiently brief and suggestive, rather than explicit. On this basis, it was considered suitable for daytime viewing, although it was decided to avoid scheduling the trailer around children’s programmes.

The trailer was shown during programmes which would not generally appeal to young children, such as The Jeremy Kyle Show. On two occasions, though, the trailer was shown during The Flintstones and, although not a children’s programme, the broadcaster did accept that it would be of interest to children.

ITV regretted that the trailer upset any younger children. However, the broadcaster believed that the content was less explicit and, consequently, less disturbing or frightening than many US fantasy programmes, such as Angel or Buffy the Vampire Slayer.

However, the broadcaster appreciated the concerns of parents about the scheduling of this trailer during The Flintstones and, with hindsight, recognised that this could be seen as inappropriate. ITV has, therefore, taken the decision not to run similar content and scheduling of Supernatural trailers in future.

Decision

Rule 1.3 states that “Children must also be protected by appropriate scheduling from material that is unsuitable for them.”

When considering the suitability of the content of a trailer in relation to Rule 1.3, Ofcom has to take into account that trailers come upon viewers unexpectedly and the nature of the programmes scheduled around the trailer. From audience research, we also know that younger children, in particular, are easily frightened by the ‘morphing’ of characters into threatening creatures.

Ofcom accepts that ITV took care on the majority of occasions to avoid scheduling the trailer during programmes that would appeal to young children. However, the trailer was shown during a film (The Flintstones) with a likely wide appeal to families and, consequently, could be disturbing to younger children.

We welcome ITV’s decision not to broadcast Supernatural trailers in future during programmes which would specifically appeal to children. On this basis, we consider the matter resolved.

Resolved

The Cosmos: A Beginner’s Guide
BBC2, 10 August 2007, 19:30

Introduction

This was the first programme in a new series in which Adam Hart-Davies examined the nature of the universe. It looked at efforts by scientists to detect life elsewhere in the cosmos and whether aliens portrayed in films bore any resemblance to real life.

Two viewers complained that the clip from the film Alien, where the alien creature bursts out of John Hurt’s stomach, was too frightening in a programme before the 21:00 watershed. Both viewers were watching with young children.

Ofcom asked the BBC for comments in relation to Rule 1.3 (Children must be protected by appropriate scheduling from material that is unsuitable for them).

Response

The BBC explained that only a brief clip was shown from the film. It was used to illustrate a parallel between gestation of the creature in Alien and the breeding habits of a species of parasitic wasp. The serious editorial purpose of the programme and the comments of the scientists provided a very different context from that of viewing the film itself. An earlier clip from the film had been shown at the beginning of the programme and the later sequence was part of a wider examination of Hollywood “aliens”, mentioning their “scary” nature. This gave some indication of what was to come.

The broadcaster, though, regretted the distress this clip caused young viewers. The BBC decided that this sequence would be re-edited to remove the “alien” emerging from any repeat of the programme before the watershed.

Decision

Rule 1.3 requires that children should be protected from unsuitable material by appropriate scheduling. In this case, although only a short clip of this 15-rated film was shown, it could be particularly frightening to some young children who would not be familiar with this film.

Ofcom welcomes the action taken by the BBC to re-edit the programme to remove this sequence for any future pre-watershed broadcast.

Ofcom therefore considers the matter resolved.

Resolved

Not in Breach

During this latest series, which ran for 14 weeks from Wednesday 30 May to Friday 31 August 2007, viewers complained to Ofcom about two incidents relating to the broadcast of potentially offensive language.

6 June 2007, 22:00, Emily Parr

Around 450 viewers complained about issues relating to an incident in which housemate Emily Parr used the word “nigger”.

The conversation involving Charley Uchea, Nicky Maxwell and Emily Parr began with Emily Parr commenting, in what appeared to be a light-hearted way, on Charley Uchea’s dancing, “You pushing it out you nigger...” The other two reacted in a shocked and surprised manner and Emily Parr insisted that she used the word jokingly.

Further conversations related to the incident, which included the use of the expression by other housemates, were broadcast throughout the programme. The episode culminated in Emily Parr being summoned out of bed to the Diary Room. Here, Big Brother told her that it would not tolerate racist language or behaviour and then evicted her.

In summary, complainants expressed a variety of concerns:

Channel 4’s decision to broadcast the incident in the first place was unjustified and offensive; particularly in the light of the furore caused by racial offence in the previous series of Celebrity Big Brother;

Channel 4, by evicting Emily Parr, over-reacted, and ignored its duty of care for her welfare outside the House;

the censure of Emily Parr was racially imbalanced since her use of the word was not racially motivated; in addition other housemates, using the same word and behaving in a way that may have been racially motivated, were not given similar treatment; and

the repetition of the offending word by other housemates was equally offensive.

1 July 2007 and 4 July 2007 , Laura Williams

Around 200 viewers complained about two separate incidents in which Laura Williams used the word “poof”.

In the first incident on 1 July 2007, Laura Williams was tickling Liam McGough’s feet. When he squirmed, she called him a “poof”. There was no intervention by any of the housemates or Big Brother.

In the second incident on 4 July 2007, Laura Williams used the word when she was in the bedroom of the House with Gerry Stergiopoulos discussing Liam McGough and how he had removed a collar and chain; items which were part of a challenge in which housemates were expected to wear various objects related to more unusual sexual practices.

In summary, complainants were concerned that:

The word “poof” is as offensive to members of the gay community as the word “nigger” is to members of the black community; and

given the above, Channel 4's reaction towards Laura Williams should have been similar to its reaction to Emily Parr; that this was not the case resulted in discriminatory treatment by the broadcaster towards members of the gay community.

Decision

In the light of the complaints, we considered the material against the following Code Rules:

2.1 :“Generally accepted standards must be applied to the contents of television…services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive material”;

2.3 : “In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context…such material may include…offensive language…discriminatory treatment or language (for example on the grounds of race…and sexual orientation)…”; and

2.4 : “Programmes must not include material…which, taking into account the context, condones or glamorises…seriously antisocial behaviour and is likely to encourage others to copy such behaviour”.

In considering this material, Ofcom is clear that it must fulfil its duties in a way which is consistent with Article 10 of the European Convention on Human Rights. This provides for the broadcaster’s right to impart information and ideas, and the audience’s right to receive them, without interference by public authority, as long as the broadcaster complies with relevant Codes and the requirements of statutory and common law.

In coming to its decision, Ofcom also bore in mind its previous adjudications and findings where it has considered similar issues: in particular, its adjudication in respect of Celebrity Big Brother 5 (published 24 May 2007); and its findings in respect of Big Brother 7 (published in Bulletin 69, 18 September 2006), and Shipwrecked (published in Bulletin 87, 18 June 2007).

The Code does not prohibit the broadcast of language or behaviour even if it is, or is perceived to be, offensive. This material can be transmitted, provided that members of the public have adequate protection from its inclusion. In the provision of this protection, the Code requires that broadcasters must apply generally accepted standards and that the inclusion of any offensive material be justified by context. Context includes but is not limited to: the editorial content of the programme or series; the service on which the material is broadcast; the degree of offence likely to be caused by the inclusion of any particular sort of material; and the likely expectation of the audience.

We considered the two issues separately, as set out below. However, in coming to our decisions, we also bore in mind some complainants’ concerns that the broadcaster had treated each incident differently and that this was, in some way, discriminatory.

Emily Parr’s use of the word “nigger” 6 June 2007 22:00

A transcript of two of the conversations relevant to this finding follows:

Channel 4’s broadcasting of the incident and subsequent events and conversations.

Ofcom has made clear in previous adjudications and findings that the broadcasters’ right to broadcast such material and the audience’s right to receive it is an important principle. It has been established over many series that the Big Brother audience expects to see all aspects of the housemates’ characters exposed during their stay in the house. Channel 4 would not have been expected to keep key character information from viewers, since it is the viewers who decide who to vote for. By including these scenes, Channel 4 offered viewers an insight into all the housemates’ characters, not just Emily Parr’s. In Ofcom’s view this context is in line with the editorial content of the series and audience expectations, and there was therefore no breach of Rules 2.1 and 2.3.

There is no ban on the broadcast of potentially offensive material. However, if such material is broadcast, generally accepted standards must be applied. In this case, such language should be justified by the context. The context in this case was that the material was broadcast in a reality series - Big Brother (as outlined above) - and the editorial of the programme was clear that use of the word “nigger”, in these circumstances, was offensive and unacceptable. Ofcom therefore considered that there was appropriate justification and there was no breach of the Code.

Turning to the complaints by viewers that Channel 4 over-reacted by evicting Emily Parr: in such instances, the regulator considers only whether any given potentially offensive material is justified by context. The levels or extent to which a broadcaster provides such justification is an editorial matter for broadcasters.

Whether the welfare of Emily Parr was compromised in this incident.

In our view, adults make informed decisions about their participation in such programmes. People who participate in a programme (and others directly affected by a programme) can complain to Ofcom if they feel that they have been treated unfairly in the programme. In the course of considering such complaints of unfairness or infringement of privacy, Ofcom may consider the circumstances surrounding the complainant’s agreement to participate. However, in law, Ofcom cannot consider complaints of unfairness made by the general public on behalf of participants in programmes. We are therefore not able to consider whether these scenes were unfair to Emily Parr.

Subject to the limitations outlined above, however, it is still open to Ofcom, if it considers it appropriate, to consider complaints from viewers concerning issues under Rule 2.3 (generally accepted standards) of the Code. As stated above, there was no breach of Rule 2.3.

Whether the treatment of Emily Parr was racially imbalanced, as others used the expression and may have been racially motivated to do so, and:

Whether its repetition by other housemates was equally offensive.

The further use of the word was clearly in the context of reported speech: the other housemates discussing the incident among themselves. It was justified in this context in that the editorial decision was to witness the other housemates exploring the issue. The degree of offence would have been lessened by the fact that people were shocked by the expression and clearly understood its use to be wrong. This was reinforced by Emily Parr’s eviction. There is no evidence that the further use of this expression, or subsequent behaviour by the other housemates, was racially motivated.

Finally, we considered whether any of the material condoned or glamorised seriously antisocial behaviour and encouraged others to copy it; putting it in breach of Rule 2.4. In our opinion, whilst the expression itself is certainly antisocial, its use was censured by both the other housemates and by Big Brother. It was therefore made clear that the use of the expression was unacceptable. For this reason, the programme could not be said to have condoned its use or encouraged others to copy this behaviour.

Not in Breach

Laura Williams’ use of the word “poof”; 1 July 2007 , 21:00 and 4 July 2007 , 21:00

A transcript of two of the conversations relevant to this finding follows:

Conversation One: 1 July 2007

Voice Over:Some of the housemates are in the bedroom.

[Laura and Liam are lying together on the bed].

Laura:O you want tickling do you?

Liam: Right, right, I’ll see how long I can hack.

[Liam is lying on the bed, hand over his face].

[Laura Laughs].

Laura: Tickle tickle tickle!

[Liam moans and squeals and wriggles on the bed].

Laura:You poof.

Liam:Mental as!

Conversation Two: 4 July 2007

Voice over: 10:36pm Laura, Sam and Amanda are in the bedroom.

[Liam walks out of the diary room, he is dressed in a white vest with a leather waistcoat and leather flat cap].

Liam: Well!...

Nikki:Are you allowed to take it off now? [referring to the collar and lead he has been wearing].

Liam: Yeah because it’s hurting my neck…but I have to keep this on for now [points to waistcoat]…

[Cut to bedroom: Laura, Sam and Amanda are lying on the beds. Gerry walks in with the collar and starts tying it around Sam’s legs].

Amanda:Gerry - is he allowed to take this off now, yes?

Gerry:Yes.

Laura:It’s because his neck is hurting like a big poof. O! [Laura puts her hand over her mouth] Not allowed to say that word. No poof words! No P words.

Gerry:What poof? Poof. Oh it doesn’t matter. He did look like…

Sam: I’m actually stuck.

Laura:Look at him he’s such a, what’s the word for it? Floozie? No.

[Liam walks into the bedroom].

Laura: Was your neck hurting you?

Liam: Yeah it was.

As part of its investigation into the use of the word “poof” by Laura Williams, Ofcom asked Channel 4 to respond to complaints related to the Emily Parr and Laura Williams incidents in the light of Rule 2.3 of the Code (generally accepted standards). We asked the broadcaster particularly to bear in mind viewers’ concerns that Laura Williams had been treated differently from Emily Parr and that consequently, this was believed by some complainants as discriminating against the gay community.

Response

Channel 4 told us that the obligations imposed by Ofcom’s Code Rules are taken very seriously by the Channel, hence the considerable amount of time and resources that it has employed over the years to set up procedures and systems to ensure its best possible compliance with them. The issue of offence to viewers as a result of the broadcast of potentially discriminatory language had been of particular concern to the Channel after the events surrounding the last series of Celebrity Big Brother and the subsequent Ofcom investigation and findings. In the run up to Big Brother 8, a number of additional measures had been introduced to minimise the recurrence of similar issues, and throughout the series they told us that very careful attention had been paid to balancing the editorial needs of the programme, with the risk of offence to viewers in this area.

With regard to the Laura Williams incident broadcast on 1 July 2007 the broadcaster told us that following new procedures (introduced in the wake of Celebrity Big Brother 2007), a rough cut of this show had been viewed on site at Elstree Studios with senior production staff, in the presence of the Channel 4 commissioning editor and the Channel 4 duty lawyer for the show. It had been immediately recognised that the inclusion of the word “poof” could potentially be offensive to some viewers.

Accordingly, the broadcaster told us, very careful consideration had been given to whether its inclusion in the show could be justified by its editorial context, what degree of harm or offence was likely to be caused to viewers by its inclusion, and what the likely expectation of the audience would be.

Editorially the scene and Laura Williams’ use of the word was considered very important: Until this time Liam McGough and Nicky Maxwell had been developing an intimate friendship and it was clear that Nicky Maxwell, a self confessed “man-hater”, had developed a crush on Liam McGough. Accordingly, showing him engaging in an intimate exchange with Laura Williams in front of Nicky Maxwell - an exchange in which Laura Williams appeared to be using the word “poof” flirtatiously, to tease him – had been, in the broadcaster’s view, a key part of this ongoing storyline.

In considering potential viewer offence the broadcaster had decided that regular viewers were unlikely to find Laura Williams’ use of the word “poof”, in the manner she did, unjustifiably offensive. The reasoning behind this, it said, was that up until this point there had been no indication that Laura Williams was in any way homophobic. To support this view, the broadcaster had pointed out Laura Williams’ best friend and ally in the house had been the openly gay housemate Seany O'Kane, who had been very comfortable using the word “poof” in front of Laura Williams to describe himself and the only other openly gay housemate, Gerry Stergiopoulos.

Channel 4 decided that the inclusion of Laura Williams’ use of this word also revealed more about her character, going to the root of the Big Brother show concept in which viewers see housemates “warts and all” and can accordingly make an informed decision as to whether they should be evicted or not.

In the days immediately following the broadcast of this episode the broadcaster had received a number of complaints, from which it became clear that the degree of offence caused by the broadcast of this word, in particular without any formal reprimand from Big Brother, had been underestimated. Accordingly the decision had been taken, in consultation with senior commissioning, production and legal staff, that if Laura Williams were to use this language again that she should be dealt with by Big Brother (depending on the context of the use) in line with the show's policy on unacceptable behaviour. In addition it had been agreed that any such incident and reprimand should be broadcast in order to reassure offended viewers.

Turning to the incident broadcast on Wednesday 4 July 2007 , Channel 4 told us that several days after the first incident Laura Williams did indeed repeat the offending word in a very similar context. On this occasion, Big Brother, later in the programme, is seen to call Laura Williams into the Diary Room to reprimand her for this language. Big Brother said: “Laura, Big Brother would like to remind you that Big Brother does not tolerate inappropriate or offensive language being used in the Big Brother House”. Big Brother went on to say that “inappropriate or offensive language would include homophobic language such as 'poof’". Laura Williams had explained that although she understood the potential to offend, this was not what she had meant by using it. Big Brother reiterated: “Big Brother does not tolerate inappropriate or offensive language being used in the Big Brother House”, to which Laura Williams responded “OK”.

The broadcaster said that this reprimand had been immediately followed by the end credits for the show, which had included an invitation to vote for a housemate to evict. The two housemates that were up for eviction were Laura Williams and Chanelle Hayes. On Friday 6 July 2007 , Laura Williams was evicted from the Big Brother house following the public vote.

Channel 4 went on to say that although it acknowledged the concerns raised by some viewers that Laura Williams had been treated differently from housemate Emily Parr, who had been evicted in the first week of the series for using a highly offensive racist term directly to a black housemate Charley Uchea, it did not agree with them. The decision on how to reprimand Laura Williams had not been taken lightly. Each instance of unacceptable behaviour in the series had been carefully judged on its own facts. It had been considered at senior levels in both the Channel and the production company. For the broadcaster, the important distinction had been made that Laura Williams, in contrast to Emily Parr, had not used this term directly against a gay housemate (Liam McGough is not gay) and it had been very clear that the gay housemate whom it had been used in front of had not been offended by her use of the term, unlike Charley Uchea in the Emily Parr incident. It had therefore been judged appropriate by the broadcaster to first issue Laura Williams with a formal reprimand, rather than to proceed to an immediate eviction. This had been considered the most appropriate and effective course of action. Given that Laura Williams was up for eviction that week, viewers would therefore have been able to retain the right to evict by public vote. Accordingly, in Channel 4’s view, a core editorial tenet of the series (“who goes? you decide”) had been preserved, whilst at the same time an unequivocal message had been sent to viewers that such language, no matter how intended, is unacceptable to Big Brother.

The broadcaster concluded by saying that it regretted any offence caused to viewers as a result of either broadcast.

Decision

We first considered the incidents related to Laura Williams in the light of Rules 2.1 and 2.3 (generally accepted standards). In Ofcom’s opinion, generally accepted standards were applied to this material and adequate context was given.

In our view, it is not possible or appropriate at present to establish definitively the degree of offence use of the word “poof” can cause in all contexts. For example, i t is clear that within the gay community itself, the word “poof” can be used in a playful, affectionate or self-deprecating way. This is evidenced, for example, by the use of the word in Friday Night with Jonathan Ross (BBC1), with its resident band Four Poofs and a Piano. In Ofcom’s view, there is insufficient or no evidence to suggest that Laura Wiliams used the word complained of in a denigratory way.

In coming to this decision, we took into account:

the expectations of the audience - that they would be able to see housemates “warts-and-all” and choose to vote for their eviction, which they subsequently did in the case of Laura Williams;

that, in the first incident, there was no indication that Laura Williams’ use of the word “poof” was intended as a homophobic reference;

that when it became clear that such language ran the risk of being homophobic or offensive, the broadcaster reprimanded Laura Williams, thus ensuring the broadcast of such material was justified by context; and

that the use of the word “poof” was not directed at a gay person, unlike the use of the word “nigger”, which was directed at a black person.

We then went on to consider the material in the light of Rule 2.4 (seriously antisocial behaviour). Ofcom is sympathetic to the concerns voiced by complainants about the use of the word “poof”; especially where it might be emulated by younger viewers, with the consequent risk of bullying at school. Broadcasters are therefore reminded to exercise care about the frequency with, and context in, which the word is broadcast.

Not in Breach

Smile
CBBC, 19 March 2006

Introduction

Smile is a children’s entertainment programme broadcast on Sunday mornings on CBBC. It incorporates a variety of interactive elements including competitions involving viewer participation. One such competition is Jambusters, a video game in which contestants use voice commands to control a jam firing cannon.

There are two versions of the game. In Jambusters, individual contestants compete against a high score. In Jambusters: The Rivals, two connected individuals compete against each other in order to settle a score.

Jambusters and Jambusters: The Rivals were competitions which viewers could apply to enter via a premium rate telephone service. In live broadcasts, contestants usually competed from home, though some would be invited to the studio.

With regard to Jambusters contestants could either apply to enter on the day of transmission and take part that day or in a future programme. With regard to Jambusters: The Rivals viewers were consistently invited to apply to participate in a future programme.

A number of allegations about Smile on CBBC were made in the media. In summary, they alleged that:

Pre-recording : a number of episodes of Smile were pre-recorded, even though the programme represented itself as a ‘live’ programme which runs ‘live’ competitions;

Encouraged to Enter : viewers were encouraged to call the programme via a premium rate service to take part in an interactive competition which had already taken place; and,

Theatrical Agency : the competition winners were supplied by a theatrical agency (Stagecoach), were given an unfair advantage by being allowed to practise beforehand, and were guaranteed prizes.

The BBC provided Ofcom with written comments in response to the allegations.

Response

Pre-recording

The BBC stated that five editions of the programme Smile were typically pre-recorded in the course of a year to take account of major public holidays and live sporting coverage. It said that it took from media reports that its source related to a studio session recorded on 10 March 2006 in which the broadcasts for the 19 and 26 March 2006 were pre-recorded. However, it said that of these two programmes only the edition of 19 March 2006 was relevant (i.e. involved participating children) as the edition transmitted on 26 March 2006 featured the competition between the presenter and her mother.

Encouraged to Enter

The BBC stated that it was not the case, as was alleged in the article, that children were encouraged by presenters to call to participate in what was knowingly a pre-recorded programme. It explained that the invitation to participate (by the presenters) in the edition of 19 March 2006 was phrased generically and not in terms which generated false expectations, e.g.

“If you want to settle an argument then get in touch and play Jambusters: The Rivals. 09011 900 500. Don’t forget to ask permission and all that malarkey. If you want to go to the website it is bbc.co.uk/cbbc and click on Smile. You’ll find all the games there and you can get in touch as well.”

Moreover, on 19 March 2006 the invitation to participate in Jambusters: The Rivals was placed after the game had been played, so the broadcaster said there could be no question of giving viewers the impression that they could participate that day.

There were no further invitations to participate prior to Jambusters being played at the end of the programme on that day.

Viewers who did contact the programme as a result of the programme broadcast on 19 March 2006 were considered for future editions of the programme.

Theatrical Agency

With regard to the claim that this edition of the programme’s winning competitors were supplied by an agency (Stagecoach), the broadcaster stated that the claims were presented in a distorted form. It said that typically over 90% of the children who participate in Smile are from the audience who contact the programme by phone, letter, email or via its website. In addition to them, a few participants are drawn from other sources such as schools and children’s groups in the UK. Members of the programme’s production team visit and film on a weekly basis at many schools and children’s groups and they invite children to apply to participate in the programme. Among the groups visited by the production team is Stagecoach Theatre Arts PLC’s Saturday Schools (of which there are 600 in the UK with 40,000 children attending). It confirmed that these children were therefore not “supplied by an agency” and no fee was either offered or requested.

The broadcaster went on to explain that in live broadcasts, Jambusters contestants are able to compete from home so competitors would not normally be drawn from the children invited to the studio. However, pre-recording renders participation from home impossible. Therefore the contestants in the pre-recorded 19 March 2006 programme were drawn from the studio audience and participated from a separate area of the studio. They watched the action on a monitor and gave their instructions by phone, as they would have if they had been at home. Because children are required to attend the studio for four hours during recording, they were allowed to play any of the Smile website games on two computers during unoccupied time, to prevent them from becoming bored. It continued that because the same games are available on its website, that no unfair advantage was available to the children in the audience as children at home are able also to practice on their home computers.

The broadcaster confirmed that the children were not “guaranteed prizes”, if that infers that they were guaranteed to win their games. It said that every child who visits the studio receives a “goody bag” as a souvenir which is the same bag given to every child who participates in the competition. Additionally, those children who score more than 60 or 120 points in the game receive a more valuable prize.

Decision

Rule 2.11 of the Code states that “Competitions should be conducted fairly, prizes should be described accurately and rules should be clear and appropriately made known”.

Pre-recording

The practice by the BBC to very occasionally pre-record editions of Smile to allow for disruption to the schedule due to public holidays or major sporting events would appear to be standard practice for dealing with such circumstances and should not appear in itself (and in the particular circumstances of this case) to raise any issues against the Code.

However, broadcasters must be alert to the potential for misleading their audience as to whether a programme is pre-recorded or live, where this may give rise to issues of compliance with the Code. This is particularly important when a programme contains an element of audience participation where viewers or listeners may mistakenly believe that they are able to participate in the programme and it could result in a competition being run unfairly.

The need for transparency is even greater when dealing with a child audience who are unlikely to understand that programmes (or sections of programmes) might be pre-recorded and shown ‘as live’.

In this case, the scripting of the programme clearly gave the impression that the pre-recorded programme was ‘live’. In Ofcom’s view it would have been preferable for the programme to have provided the viewers with sufficient information (taking into account the nature of the viewers) to enable them to understand that the programme was not live and that they could not participate in any element of the programme that day. Nevertheless, in the circumstances of the case, the pre-recording of this programme did not result in an unfair competition being run (see below).

Encouraged to Enter

Ofcom noted that in this edition of the programme the only invitation for audience participation was carefully placed after one interactive element of the programme, Jambusters: The Rivals, had already concluded. The invitation was sufficiently separated within the programme from the other interactive element of the programme, Jambusters, and importantly contained no explicit suggestion that viewers would be able to participate in the programme on that same day.

In Ofcom’s view there was, nevertheless, still a possibility as a result of the impression that the programme was ‘live’ that members of the audience, and in particular children, would mistakenly believe that they could call the programme and participate in some element of the programme on that day.

However, and in any event, all viewers who did contact the programme as a result of the programme broadcast on 19 March 2006 were considered for future editions of the programme and, as such, were in no way materially disadvantaged.

Theatrical Agency

The BBC stated that it occasionally used children from schools or Saturday groups for reasons of convenience in a non-‘live’ situation where it was necessary to use children who were available in the studio and not at home. Ofcom did not consider that this amounted to the programme makers colluding with any organisation to deliberately deceive viewers or exclude them from taking part. The broadcaster confirmed that whilst it is common practice to include children from schools and groups throughout the UK as studio guests, in general 90% of its studio audience members are viewers who have contact the programme directly.

Ofcom also did not consider the presentation of a “goody bag” to all the children in the studio and additional prizes for high scoring winners, which the broadcaster confirmed is usual practice for all guests and participants, raised any issues against its Code.

Not in Breach

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